Written By: Ravi Prithipaul (Criminal Defence Lawyer)
It is an unfortunate reality that sexual assault allegations occur in a wide variety of contexts, including between strangers, within families, among intimate partners, friends, colleagues at workplaces, in professional relationships, and so on. A question that often arises concerns the attitudes and behaviours of the complainant and accused towards each other on occasions other than at the time of the incident. Suppose, for instance, that the complainant had a friendly relationship with the accused after the alleged sexual assault: is that relevant at the accused’s trial?
To be clear, we are discussing here non-sexual conduct. Evidence of the complainant’s sexual activity is strictly limited by the Criminal Code (eg. section 276) and binding Supreme Court of Canada judgments (eg. R. v. Goldfinch, [2019] S.C.J. No. 38). This body of law forbids the introduction of sexual history evidence to support the “twin-myths” that the complainant was more likely to have consented to the sexual activity or was less worthy of belief. The general rule is that we must avoid “stereotyping” complainants in sex assault cases because people react to assaultive behaviour in many different ways.
So, for example, it is wrong to assume that a step daughter who alleges that her step father sexually assaulted her would naturally tend to avoid him during the several years during which the abuse occurred. In that specific situation, the Alberta Court of Appeal ruled, in a decision which the Supreme Court of Canada affirmed, that it was erroneous when the trial judge discounted the step daughter’s testimony because one “would have expected some evidence of avoidance either conscious or unconscious”: R. v. A.R.J.D, [2018] S.C.J. No. 6. This expectation of avoidant behaviour reflects stereotypical assumptions about how persons act in response to abuse.
What is unfortunate, in my respectful view, is that the Alberta Court of Appeal formulated a rigid rule in A.R.J.D.: “a trial judge’s perceived lack of avoidant behaviour or lack of change in behaviour, must never be used to draw an adverse inference about a complainant’s credibility”. While that reasoning makes perfect sense in the context of a relationship between persons of unequal status or power, such as parent and child, teacher and pupil, or employer and employee, I would suggest that post-incident conduct can be quite relevant to the factual accuracy of whether a sexual assault occurred when complainant and accused are equals. In fact, the Ontario Court of Appeal has accepted this general statement of principle:
I think that evidence that the relationship between E.K. and the appellant, including the sexual component of the relationship, carried on as it had before the alleged assault was relevant to whether the assault occurred. The defence could argue that evidence that the sexual component of the relationship carried on as before, supported the defence position that the parties carried on as if nothing had happened because nothing had in fact happened.
R. v. L.S., [2017] O.J. No. 4586 (CA).
The Courts of Appeal in Nova Scotia (R. v. W.J.M., [2018] N.S.J. No. 235 (CA)) and New Brunswick (R v Foster, 2020 N.B.J. No. 30 (CA)) have endorsed this view. To restrict the defence to relationship evidence which occurs solely prior to the date of the allegation could distort the trial judge’s understanding of the facts. For instance, a complainant may say she was pressured or threatened when she allowed the accused into her residence when she alleges she was assaulted. Would it not be relevant to introduce evidence that the complainant continued to welcome the accused into her home?
One hopes that the courts will guide us in the future on the relevance of non-avoidant behavior. To suggest that it is never relevant is to exclude evidence that a trier of fact, whether it be a trial judge sitting alone or a jury, could use to determine if the accused is innocent.
